HomeMy WebLinkAboutCity of Tamarac Resolution R-2007-128Temp. Reso. #11268
August 8, 2007
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CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2007-_�a
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO ACCEPT AND
EXECUTE A RIGHT-OF-WAY MAINTENANCE AGREEMENT'
WITH MAINLANDS SEC. FOUR CIVIC AND RECREATION
ASSOCIATION, INC. TO CONSTRUCT AND MAINTAIN A
PRIVACY WALL AROUND AN EXISTING PUMP STATION
UPON RIGHT-OF-WAY OWNED BY THE CITY, LOCATED AT
NW 4630 NW 46TH STREET ; AUTHORIZING AND
DIRECTING THE CITY CLERK TO RECORD SAID
AGREEMENT IN THE PUBLIC RECORDS OF BROWARD
COUNTY; PROVIDING FOR CONFLICTS; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, Mainlands Section Four Civic and Recreation Association, Inc. is the
Home Owner's Association (a copy of which is attached hereto in map form as "Exhibit
A"); and
WHEREAS, Mainlands Section Four Civic and Recreation Association, Inc. has
offered a Right -of -Way Maintenance Agreement to the City of Tamarac; and
WHEREAS, the HOA shall hold the City harmless from any costs or
Obligation to restore privacy wall as a result of any repair or maintenance to the right-of-
way or infrastructure; and
Temp. Reso. #11268
August 8, 2007
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WHEREAS, the Director of Public Works recommends the acceptance and
execution of this Right -of -Way Maintenance Agreement for the HOA Project; and
WHEREAS, the City Commission of the City of Tamarac, Florida, deems it to be
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in the best interest of the citizens and residents of the City of Tamarac to accept and
execute a Right-of-way Maintenance Agreement with Mainlands Section Four Civic and
Recreation Association, Inc. for irrigation structure placed upon right-of-way owned by
the City.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, THAT:
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this
resolution.
SECTION 2: The appropriate City Officials are hereby authorized to
accept and execute a Right -of -Way Maintenance Agreement with Mainlands Section
Four Civic and Recreation Association, Inc. for irrigation structure placed upon right-of-
way owned by the City. (A copy of which is attached hereto as "Exhibit A") located at
4630 NW 46"' Street.
SECTION 3: The City Clerk is hereby authorized and directed to record
said agreement in the public records of Broward County.
SECTION 4: All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
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Temp. Reso. #11268
August 8, 2007 4
SECTION 5: If any clause, section, other part or application of this
Resolution is held by any court of competent jurisdiction to be unconstitutional or
invalid, in part or application; it shall not affect the validity of the remaining portions or
applications of this Resolution.
SECTION 6: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this �— day of ,
2006.
BETH FLANSBAUM-TALABIS O
MAYOR
ATTEST:
MARION SWENSON, CMC
CITY CLERK
I HEREBY CERTIFY that
I have approved this
RESOLUTION as to form.
SAM EL S. GOREN
CITY ATTORNEY
RECORD OF COMMISSION VOTL
MAYOR FLANSBAUM-TALAI
DIST 1: COMM. PORTNER
DIST 2: COMM. ATKINS-GR
DIST 3: V/M SULTANOF
DIST 4: COMM. DRESSLER
MAINTENANCE AGREEMENT
BETWEEN CITY OF TAMARAC
AND MAINLANDS SECTION FOUR CIVIC AND
RECREATION ASSOCIATION, INC.
THIS AGREEMENT dated this ay of
2007 made by and between:
THE CITY OF TAMARAC, FLORIDA, a municipal corporation organized and
operating pursuant to the laws of the State of Florida, with a business address of 7525
NW 88`h Avenue, Tamarac, FL (hereinafter referred to as "CITY")
And
MAINLANDS SECTION FOUR CIVIC AND RECREATION ASSOCIATION,
INC., a Florida Not -for -Profit corporation, with a business address of 4630 NW 461h
Street, Tamarac, FL (hereinafter referred to as "ASSOCIATION"). CITY and
ASSOCIATION may sometimes hereafter be referred to collectively as "the Parties".
WITNESSETH:
WHEREAS, the CITY owns and/or maintains certain rights -of -way throughout the
CITY of Tamarac, Florida; and
WHEREAS, within and around such rights -of -way the CITY maintains roadways and
surrounding areas; and
WHEREAS, in conjunction with the maintenance of perimeter property that traverses the
ASSOCIATION'S boundaries, at the request of the Association, the CITY shall allow the
Association to build a privacy wall around a pump station located thereon; and
WHEREAS, the parties desire to enter into this agreement to commemorate the parties'
responsibilities with respect to maintenance of such features within the rights -of -way and to set
forth the rights and obligations of the Parties.
NOW, THEREFORE, in consideration of the mutual terms, conditions, promises and
covenants hereinafter set forth, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, CITY and. ASSOCIATION hereby agree as
follows:
1. Recitals. The foregoing "WHEREAS" clauses are hereby incorporated
herein by this reference.
covenants hereinafter set forth, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, CITY and ASSOCIATION hereby agree as
follows:
1. Recitals. The foregoing "WHEREAS clauses are hereby incorporated herein
by this reference.
2. The CITY is currently maintaining and will continue to maintain the
landscaping and irrigation systems for the rights -of -way it owns and/or controls. Aerial shot
of location with done line as Paragraph #2 of Exhibit "A".
3. The ASSOCIATION agrees to build and thereafter provide all structural repairs
for the wall to be constructed by the ASSOCIATION, as more particularly set forth in
Exhibit "A". The ASSOCIATION further agrees to provide all aesthetic maintenance of
the privacy wall to be constructed by the ASSOCIATION located at the intersections of 46`h
Street and 46" Way as more particularly set forth in Exhibit "A", including, but not limited
to painting and cosmetic repairs associated with vandalism, aging, or otherwise.
4. The maintenance obligations by either Party shall be in accordance with the
requirements of the City's Code of Ordinance or such other state, federal or local regulations
which may apply.
5. Term and Termination.
5.1 The term of this Agreement shall commence on the date it is fully
executed by both Parties and shall continue until it is terminated by either Party.
5.2 This Agreement may be terminated for cause or convenience by the City
upon a thirty (30) day written notice given to the ASSOCIATION setting forth the breach
with an opportunity to cure such breach within such thirty (30) days.
5.3 Termination of this Agreement for cause shall include, but not be
limited to failure of a Party to suitably perform the services required hereunder and
adequately provide sufficient maintenance as required herein.
6. Insurance Requirements. ASSOCIATION shall not undertake any maintenance
obligations as required herein until it has obtained all insurance required under this paragraph
and such insurance has been approved by the Risk Manager oT the CITY.
6.1 Certificates of Insurance. Reflecting evidence of the required insurance
shall be filed with the City's Risk Manager prior to the commencement of any maintenance
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6.2 Commercial General Liability and Automobile Liability insurance to
cover liability bodily injury and property damage. Exposures to be covered are: premises,
operations, products/completed operations, and certain contracts. Coverage must be written on
an occurrence basis, with the following limits of liability:
$1,000,000
Combined Single Limit — each occurrence
$1,000,000
Combined Single Limit — general aggregate
$1,000,000
Personal Injury
$1,000,000
Products/Completed Operations Aggregate
$1,000,000
Automobile Liability
6.3 Workers' Compensation insurance shall be maintained for the duration of
the work required to comply with statutory limits for all employees, and in the case any work is
sublet, the Contractor shall require the Subcontractors similarly to provide Workers'
Compensation Insurance for all the latter's employees unless such employees are covered by the
protection afforded by the Contractor. The Contractor and his subcontractors shall maintain
during the life of this policy Employers Liability Insurance. The following limits must be
maintained:
A. Workers' Compensation Statutory
B. Employer's Liability $100,000 each accident
$500,000 Disease -policy limit
$100,000 Disease -each employee
If ASSOCIATION claims to be exempt from this requirement, ASSOCIATION shall provide
CITY proof of such exemption along with a written request for CITY to exempt
ASSOCIATION, written on ASSOCIATION Letterhead.
7. In the event that either Party contracts with a third party to provide the services
set forth herein, any agreement with such third party shall include the provisions substantially in
conformity herewith:
7.1 Insurance: Contractor shall at all times during the duration of work
keep and maintain in full force and effect, at contractor's sole cost and expense, insurance of the
types and amounts as set forth herein, a copy of which is attached hereto and incorporated herein
by reference as if set forth in full, and shall name the CITY of Tamarac and the ASSOCIATION
as additional insureds.
7.2 Contractor shall furnish to the CITY's Director of Public Works the
Certificates of Insurance or Endorsements evidencing the insurance coverages specified by this
Article prior to the beginning performance of work under this Agreement.
7.3 Coverage is not to cease and is to remain in full force and effect (subject
to cancellation notice) until all performance required of Contractor is completed. All policies
must be endorsed to provide at least thirty (30) days' notice of cancellation and/or restriction. If
any of the insurance coverages will expire prior to the completion of the work, copies of renewal
policies shall be furnished at least thirty (30) days prior to the date of their expiration.
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7.4 ASSOCIATION shall require each subcontractor to indemnify CITY in
accordance with Paragraph 8 below.
8. Indemnification
8.1 The ASSOCIATION agrees to indemnify and hold harmless the CITY, its
trustees, elected and appointed officers, agents, servants and employees, from and against any
and all claims, demands, or causes of action of whatsoever kind or nature, and the resulting
losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or
decrees, sustained by the CITY or any third party arising out of, or by reason of, or resulting
from any acts, errors, or omissions of the ASSOCIATION or its subcontractor(s), except to the
extent caused by the negligence of the indemnified party.
8.2 The parties recognize that various provisions of this Agreement, including
but not necessarily limited to this Section, provide for indemnification by the CITY and that
§725.06, Florida Statutes, requires a specific consideration be given therefore. The Parties
therefore agree that the sum of Ten Dollars and 00/100 ($10.00), receipt of which is hereby
acknowledged, is the specific consideration for such indemnities, and the providing of such
indemnities is deemed to be part of the specifications with respect to the services to be provided
by CONSULTANT. Furthermore, the parties understand and agree that the covenants and
representations relating to this indemnification provision shall serve the term of this Agreement
and continue in full force and effect as to the party's responsibility to indemnify.
8.3 Nothing herein is intended nor shall be construed to waive CITY's rights
and immunities under the common law or §768.28, Florida Statutes, as amended from time to
time.
9. Independent Contractors. This Agreement does not create an
employee/employer relationship between the Parties. It is the intent of the Parties that CITY and
ASSOCIATION are independent contractors under this Agreement and neither is the employee
of the other for all purposes, including, but not limited to, the application of the Fair Labor
Standards Act minimum wage and overtime payments, Federal Insurance Contribution Act, the
Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue
Code, the State Workers' Compensation Act, and the State unemployment insurance law. The
Parties shall each retain sole and absolute discretion in the judgment of the manner and means of
carrying out their activities and responsibilities hereunder provided, further that administrative
procedures applicable to services rendered under this Agreement shall be those of each
individual Party. Services provided by each Party pursuant to this Agreement shall be subject to
the supervision of such Party. In providing such services, neither Party nor its agents shall act as
officers, employees, or agents of the other Party. The Parties agree that they are separate and
independent enterprises, that each had the full opportunity to find other business, that it has made
its own investment in its business, and that it will utilize a high level of skill necessary to perform
the work hereunder. This Agreement shall not be construed as creating any joint employment
relationship between the Parties and neither Party will be liable for any obligation incurred by
the other Party, including, but not limited to, unpaid minimum wages and/or overtime premiums.
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10. Third Pany Beneficiaries. Neither party intends that this Agreement shall
directly or substantially benefit any third party by this Agreement. Therefore, the Parties agree
that there are no third party beneficiaries to this Agreement and that no third party shall be
entitled to assert a claim against either party based upon this Agreement. The Parties expressly
acknowledge that it is not their intent to create any rights or obligations in any third persons or
entity under this Agreement.
11. Legal Representation. It is acknowledged that each party to this Agreement had
the opportunity to be represented by counsel in the preparation of this Agreement and,
accordingly, the rule that a contract shall be interpreted strictly against the party preparing same
shall not apply due to the joint contribution of both parties.
12. Assignments. This Agreement, or any interest herein, shall not be assigned,
transferred or otherwise encumbered, under any circumstances, by the Parties without the prior
written consent of the other party.
13. Records. Both Parties shall keep, maintain and preserve books and records
and require any and all subcontractors to keep books and records as may be necessary in order to
record complete and correct entries as is related to personnel hours charged to this engagement,
any expenses for which the Parties expect to be reimbursed, or any other records that are related
to this Agreement. Such books, accounts and records will be available at all reasonable times for
examination and audit by the other party and shall be kept for the required retention period of the
Florida Public Records Act (Chapter 119, Fla. Stat.) or as may otherwise be required by law.
Incomplete or incorrect entries in such books and records will be grounds for disallowance by
the other party of any fees or expenses based upon such entries.
14. Public Records. Pursuant to Chapter 119, Florida Statutes, Florida's Public
Records laws, the Parties shall maintain and make available for inspection any and all business
records generated pursuant to this Agreement as required by law.
15. No Contingent Fees. The Parties warrant that they have not employed or retained
any company or person, other than a bona fide employee working solely for such party, to solicit
or secure this Agreement, and that it has not paid or agreed to pay any person, company,
corporation, individual or firm, other than a bona fide employee working solely for the Parties,
any fee, commission, percentage, gift, or other consideration contingent upon or resulting from
the award or making of this Agreement. For the breach or violation of this provision, the CITY
shall have the right to terminate the Agreement without liability at its discretion, to deduct from
the contract price, or otherwise recover the full amount of such fee, commission, percentage, gift,
or consideration.
16. Notice. Whenever any party desires to give notice unto any other party, it must
be given by written notice, sent by certified United States mail, with return receipt requested, or
by facsimile transmission with certification of transmission to the receiving party, addressed to
the party for whom it is intended and the remaining party, at the places last specified, and the
places for giving of notice shall remain such until they shall have been changed by written notice
in compliance with the provisions of this section. For the present, the Parties and the CITY
designate the following as the respective places for giving of notice:
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CITY: Jeffrey Miller, City Manager
City of Tamarac
7525 NW 88 Avenue
Tamarac, Florida 33321
Telephone No. (954) 597-3515
Facsimile No. (954) 597-3520
Copies to: Jack Strain, Public Works Director
City of Tamarac
6011 Nob Hill Road 33321
Telephone No. (954) 597-3734
Facsimile No. (954) 597-3710
Samuel S. Goren, City Attorney
Goren, Cherof, Doody & Ezrol, F.A.
3099 East Commercial Boulevard, Suite 200
Fort Lauderdale, Florida 33308
Telephone No. (954) 771-4500
Facsimile No. (954) 771-4923
ASSOCIATION: Mainlands Section Four Civic and Recreation Association, Inc.
4630 NW 46"' Street
Tamarac, Florida 33321
Telephone No.
Facsimile No.
Copies to: Robert Kaye, Esquire
Robert Kaye & Associates, P.A.
6261. NW 6t" Way, Suite 103
Fort Lauderdale, FL 33309
Telephone No. 954-928-0680
Facsimile No. 954-772-0319
17. Binding Authority. Each person signing this Agreement on behalf of either
party individually warrants that he or she has full legal power to execute this Agreement on
behalf of the party for whom he or she is signing, and to bind and obligate such party with
respect to all provisions contained in this Agreement.
18. Exhibits. Each Exhibit referred to in this Agreement forms an essential part
of this Agreement. The exhibits if not physically attached should be treated as part of this
Agreement and are incorporated herein by reference.
19. Headings. Headings herein are for convenience of reference only and shall
not be considered on any interpretation of this Agreement.
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20. Severability. If any provision of this Agreement or application thereof to any
person or situation shall, to any extent, be held invalid or unenforceable, the remainder of this
Agreement, and the application of such provisions to persons or situations other than those as to
which it shall have been held invalid or unenforceable shall not be affected thereby, and shall
continue in full force and effect, and be enforced to the fullest extent permitted by law.
21. Governing Law. This Agreement shall be governed by the laws of the State
of Florida with venue lying in Broward County, Florida.
22. Disputes. Any claim, objection, or dispute arising out of the terms of this
Agreement shall be litigated in the Seventeenth Judicial Circuit Court in and for Broward
County.
23. Joint Defense. In the event that the validity of this Agreement is challenged
through legal proceedings or otherwise, the Parties agree to cooperate with each other in defense
of this Agreement, with each Party to bear its own attorney's fees and costs associated with such
defense.
24. Attorney's Fees. In the event that either party brings suit for enforcement of
this Agreement, each party shall bear their own attorney's fees and costs, including paralegal.
fees, at both the trial and appellate levels, in addition to any other remedy afforded by law,
except as may otherwise be provided for in this Agreement.
25. Extent of Agreement. This Agreement together with the attached Exhibits, as
amended herein above represents the entire and integrated agreement between the Parties and
supersedes all prior negotiations, representations or agreements, either written or oral.
26. Multiple CounteEparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
27. Materiality and Waiver. The Parties agree that each requirement, duty and
obligation set forth herein is substantial and important to the formation of this Agreement and,
therefore, is a material term hereof. Failure of either party to insist upon strict performance of
any provision or condition of this Agreement, or to execute any right therein contained, shall not
be construed as a waiver or relinquishment for the future of any such provision, condition, or
right, but the same shall remain in full force and effect.
28. Compliance with Laws. The Parties shall comply with all federal, state, and
local laws, codes, ordinances, rules and regulations in performing its duties, responsibilities and
obligations pursuant to this Agreement.
THE REMAINDER OF THIS PAGE
HAS BEEN INTENTIONALLY BEEN LEFT BLANK.
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IN WITNESS WHEREOF, CITY and ASSOCIATION have executed this
agreement by their duly authorized officers, this day of , 2007.
CITY OF TAMARAC
ATTEST: BY: Ae���
MAYOR BETHFLANBAUM-TAL ISCO
BY:�L
MARION SWENSON, CITY CLERK
APPROVED AS�TO FORM:
BY:
OFFICt OF THE CITY ATTORNEY
MAINLANDS SECTION FOUR CIVIC AND
RECREATION ASSOCIATION, INC.
WITNESS:
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BY:
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STATE OF FLORIDA )
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COUNTY O '� )
ON THIS _!�Fhl day of Cdr , 2007, before me, the
undersigned notary public, personally appearedJ4,,44, as President of
Mainlands Section Vour Civic and Recreation Association, Inc., personally known to me, or
who has produced Sn kj i as identification, and is the person
who subscribed to the foregoing instrument and who acknowledged that (s)he executed the
same on behalf of said Association and that (s)he was duly authorized to do so.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
SHERRY L. TAYLOR
`=OyNY F`allottary Public - State of Florida OTARY UBLIC
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